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Miscellaneous

Publication Date

2006

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Play time: 3:06 minutes

Where a three stage ADR process contained in a collective bargaining agreement excludes legal counsel from the stage one facilitation and limits legal counsel from communicating directly with the mediator in stage two, the resulting diminution of benefits impermissibly compromises employees' entitlement to workers' compensation and warrants grant of a new arbitration hearing to claimant denied benefits for work-related injury.

Quote from the Court's Majority Opinion: "An injured worker is immediately disadvantaged, particularly when a trained insurance claims adjuster or an employer with legal training is allowed to participate in a facilitation that can lead to the termination of benefits."

Quote from the Court's Dissenting Opinion: "Parties may waive their right to counsel in virtually all legal settings, including those having more serious ramifications than a workers' compensation claim. By virtue of the adoption of the rules of the Fund in the collective bargaining agreement, and the provision in the rules that counsel cannot be present at the facilitation, Kline has waived the right to have counsel present at that stage". [b]ecause Kline's waiver is part of a private agreement that created the ADR systems, there is no 'state action' and due process issues cannot arise."